FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P4-2016

SPAK LIKIDIMUS SERMENT and LORRO	)					
NAIYA, Sohtesansal Miosi,			)
)
Appellants,			)
)
vs.					)
)
PETER ANTONIO,				)
)
Appellee.			)
__________________________________________	)

	ORDER OF DISMISSAL

	Decided:  May 19, 2017

BEFORE:

Hon. Ready E. Johnny, Associate Justice
Hon. Beauleen Carl-Worswick, Associate Justice
Hon. Larry Wentworth, Associate Justice

APPEARANCE:

For the Appellants:	Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

	*    *    *    *

	HEADNOTES

Appellate Review  Notice of Appeal
In an appeal from any court other than the FSM Supreme Court trial division, the appellant must also serve a copy of the notice of appeal upon the court appealed from.  Serment v. Antonio, 21 FSM R. 251, 252 (App. 2017).

Appellate Review  Notice of Appeal
The untimely filing of a notice of appeal deprives the appellate court of jurisdiction.  Serment v. Antonio, 21 FSM R. 251, 253 (App. 2017).

Appellate Review  Notice of Appeal
In an appeal from any court other than the FSM Supreme Court trial division, an appellant must file his notice of appeal:  1) with the clerk of the FSM Supreme Court trial division in the state in which the decision appealed from was made or, at the appellant’s option, directly with the FSM Supreme Court appellate division clerk and 2) in the court appealed from.  Serment v. Antonio, 21 FSM R. 251, 253 (App. 2017).

Appellate Review  Briefs, Record, and Oral Argument; Appellate Review  Notice of Appeal
Filing the notice of appeal in the court appealed from ensures the clerk of that court is put on notice of the duty to prepare, certify, and transmit the record to the FSM Supreme Court appellate division chief clerk, but when no service of the notice of appeal is made on the court appealed from, the clerk of the court appealed from has no way to know of this duty and the court appealed from has no notice its judgment or order has been appealed and therefore might unknowingly take further actions that are inconsistent with the matter’s status as one subject to further appeal.  Serment v. Antonio, 21 FSM R. 251, 253 (App. 2017).

Appellate Review  Dismissal; Appellate Review  Notice of Appeal
Generally, a timely and properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court, but, in the absence of a timely notice of appeal, the appellate court has no jurisdiction over an appeal and it is then properly dismissed.  Serment v. Antonio, 21 FSM R. 251, 253 (App. 2017).

Appellate Review  Dismissal; Appellate Review  Notice of Appeal
If the appellants failed to file a timely notice of appeal with the court appealed from pursuant to FSM Appellate Rules 3 and 4(a)(1), then the FSM Supreme Court appellate division lacks jurisdiction to hear the matter and must dismiss it.  Serment v. Antonio, 21 FSM R. 251, 253 (App. 2017).

Appellate Review  Dismissal
When the appellants have been given reasonable notice of the appeal’s possible dismissal, and have failed to take further action, they are deemed to have abandoned their appeal, and their appeal will be dismissed.  Serment v. Antonio, 21 FSM R. 251, 254 (App. 2017).

	*    *    *    *

	COURT’S OPINION

PER CURIAM:

On February 5, 2016, Spak Likidimus Serment and Lorro Naiya, through their attorney Joseph S. Phillip, filed a Notice of Appeal in this Court from an order entered by the Pohnpei Supreme Court appellate division in Pohnpei Appeal Case No. 2-15.  They seek to appeal the final judgment entered in Pohnpei Civil Action No. 129-2013.

This Court’s records show that the Notice of Appeal was served on Appellee Peter Antonio on the same day, February 5, 2016.  However, neither the Notice of Appeal nor the attached certificate of service indicate whether the Notice of Appeal was also filed in the court appealed from, the Pohnpei Supreme Court appellate division.

FSM Appellate Rule 3(a) states, inter alia:

In an appeal from any court other than the FSM Supreme Court trial division, the appellant shall also serve a copy of the notice of appeal upon the court appealed from.  Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Supreme Court appellate division deems appropriate, which may include dismissal of the appeal.

FSM App. R. 3(a) (emphasis added).

"[O]ur appellate rules, and the cases interpreting them, clearly enunciate that untimely filing of a notice of appeal deprives the appellate division of jurisdiction."  Akinaga v. Heirs of Mike, 15 FSM R. 391, 395 (App. 2007).  In an appeal from any court other than the FSM Supreme Court trial division, the appellant must file his notice of appeal (1) "with the clerk of the FSM Supreme Court trial division in the State in which the decision appealed from was made or, at the option of the appellant, directly with the clerk of the FSM Supreme Court appellate division" and (2) in the court appealed from.  FSM App. R. 3(a); Tafunsak v. Kosrae, 6 FSM R. 467, 468-69 (App. 1994) (single justice order) ("[T]he proper procedure is to file a notice of appeal in both [the court appealed from] and the FSM Supreme Court, either with this Court’s trial division [in the state in which the decision appealed from was made] or the appellate division in Pohnpei."); Akinaga, 15 FSM R. at 394-95 (discussing Tafunsak and concluding that filing in both courts is required).

Filing the notice of appeal in the court appealed from ensures the clerk of that court is put on notice of the duty to prepare, certify and transmit the record to the chief clerk of the FSM Supreme Court appellate division pursuant to FSM Appellate Rule 11(c).  Where no service of the notice of appeal is made on the court appealed from, the clerk of the court appealed from has no way to know of the duty to prepare, certify and transmit the record to the chief clerk of the FSM Supreme Court appellate division.  Furthermore, the court appealed from has no notice its judgment or order has been appealed and therefore might unknowingly take further actions that are inconsistent with the matter’s status as one subject to further appeal.

More importantly, timely filing a notice of appeal is jurisdictional.  Under FSM Appellate Rule 4(a)(1), a notice of appeal in civil cases shall be filed "as provided in Rule 3 within forty-two (42) days after the date of the entry of the judgment or order appealed from."  FSM App. R. 4(a)(1); Kimoul v. FSM, 4 FSM R. 344, 346 (App. 1990).  Generally, a timely and properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court.  Department of the Treasury v. FSM Telecomm. Corp., 9 FSM R. 465, 466-67 (App. 2000) (citing Damarlane v. Pohnpei, 9 FSM R. 114, 119 (App. 1999); Damarlane v. United States, 8 FSM R. 14, 16 (App. 1997)).  However, in the absence of a timely notice of appeal, we have no jurisdiction over an appeal and it is then properly dismissed.  O’Sonis v. Bank of Guam, 9 FSM R. 356, 360 (App. 2000).

In this matter, if Appellants Serment and Naiya failed to file a timely notice of appeal with the court appealed from pursuant to FSM Appellate Rules 3 and 4(a)(1), then we lack jurisdiction to hear the matter, in which case, we must be dismiss it, although "[a] review of relevant U.S. cases supports the conclusion that such error does not deprive the appellate division of jurisdiction in this matter."  Akinaga, 15 FSM R. at 391; see e.g., Richey v. Wilkins, 335 F.2d 1, 4 (2d Cir. 1964) (filing of appeal in appellate, not district, court as required not grounds for dismissal when appellee not prejudiced thereby); Phillips v. Johnson, 834 A.2d 938, 944 (Me. 2003) (appeal directed to wrong court); In re Guardianship of Breeahana C., 706 N.W.2d 66, 70 (Neb. Ct. App. 2005) (wrong court designated in notice of appeal).1

On August 11, 2016, we ordered the appellants to brief us, no later than September 9, 2016, on why this matter should not be dismissed for lack of jurisdiction.  The Certificate of Service indicates that Appellants Serment and Naiya were personally served our August 11, 2016 Order to Brief the Court on August 16, 2016.  Appellee Antonio was served the same on August 12, 2016.  To date, we have not received any.

Serment and Naiya have been given reasonable notice of this matter’s possible dismissal, have failed to take further action or comply with our August 11, 2016 order, and are therefore deemed to have abandoned their appeal.  We therefore dismiss this abandoned appeal since the appellants have taken no steps other than filing a Notice of Appeal in the FSM Supreme Court.  FSM App. R. 3(a).

Accordingly, for the reasons set forth above, this appellate matter is hereby dismissed.

	*    *    *    *